Bound by Law?: Tales from the Public Domain, New Expanded Edition

Keith Aoki   James Boyle   Jennifer Jenkins

Foreword by Davis Guggenheim Introduction by Cory Doctorow

Duke University Press  2008

Copyright © 2006, 2008 Keith Aoki, James Boyle, Jennifer Jenkins This work is made available under the terms of a      Creative Commons Attribution, Non-commercial, Share-alike license.      http://creativecommons.org/licenses/by-nc-sa/2.5/ This license gives you important freedoms, including the right to copy and distribute this book noncommercially without permission or fee, so long as you adhere to the terms described below.

Attribution-NonCommercial-ShareAlike 2.5 You are free:      to copy, distribute, display, and perform the work      to make derivative works Under the following conditions:      Attribution. You must attribute the work as: Bound By Law © 2006, 2008 Keith Aoki,      James Boyle, Jennifer Jenkins      Noncommercial. You may not use this work for commercial purposes.      Share Alike. If you alter, transform, or build upon this work, you may distribute the      resulting work only under a license identical to this one. For any reuse or distribution, you must make clear to others the license terms of this work. Any of these conditions can be waived if you get permission from the copyright holder. Your fair use and other rights are in no way affected by the above. Duke University Press Cataloging-in-Publication Data Aoki, Keith Bound by law? : tales from the public domain / Keith Aoki, James Boyle, and Jennifer Jenkins  — New expanded ed.    p. cm. —  ISBN 978-0-8223-4418-6 (pbk. : alk. paper) 1. Fair use (Copyright) — United States — Caricatures and cartoons.  2. Public domain (Copyright law) — United States — Caricatures and cartoons.  3. Copyright — United States — Caricatures and cartoons.  I. Boyle, James, 1959–.  II. Jenkins, Jennifer.    KF3050 .A54 2008    346.730482 — dc22

Foreword

by Davis Guggenheim, Academy Award-winning director of the documentary "An Inconvenient Truth" As a director and producer of both commercial and non-commercial projects, I find myself on both sides of the war that rages around copyright and the public domain. In my last movie, “An Inconvenient Truth,” we had a terrible time clearing footage of all kinds. Simply finding the source and status of archival footage nearly brought my production to its knees. We faced stressful and urgent questions like: Who owns this? Will anyone who thinks they own this sue me? Even though it was considered public domain ten years ago, is there a possibility someone might claim this? Will the lawyers for the production company and studio accept the conclusion I have carefully drawn and allow me to use it in the film? I have lost many shots and sequences because I wasn't able to answer these questions. The worst example of this happened when I was making a film called “The First Year,” a documentary which followed five teachers through their treacherous first year of teaching public school. In the climactic scene, one of the teachers, who is taking his kids on a field trip for the first time, hears the song “Stairway to Heaven” by Led Zeppelin. It is both funny and tragic when he announces to his kids, “This is the greatest song ever written,” as he cranks the volume in his rental van. He is possessed with joy, expressing himself for the first time to his students. They are simply bored. Everything in the movie leads up to this moment and when audiences see this scene, they laugh and cry at the same time because it is touching and tragic. But most audiences don’t get to see this scene in the film. On the DVD, which is still for sale, that scene has been omitted because I have not been able to secure the rights to “Stairway to Heaven.” Through archaic loopholes I could use the song in festival screenings and on PBS, but when it came to any commercial use I was forbidden to use it. Not because I couldn’t afford to license the song, but because I could never find the rights holders or their representatives (of which there are many, which is another sad story).

Ten years ago, I would have used the song, citing fair use. Now lawyers for distributors are scared about the chance, just the chance, of a claim against the movie. The problems are twofold. The first is the diminishing world of fair use as the mainstream legal world interprets it. In real terms this means that now when I lift my camera and look through the lens, there is less and less that is free to use: do I have to clear that soda can, that poster, that car or that highrise? What happens to our culture when some of us can pay and others can’t? The other disturbing thing is the uncertainty of it all. Even most legal experts who work on the issue have to roll the dice trying to interpret where the current line of fair use is drawn. You can feel the handwringing when we propose even the most rock solid interpretation to an errors and omissions lawyer. The truth is that most of us just don't know. And that not knowing means that the most stringent interpretation wins. No responsible lawyer wants to expose his client to the possibility of a lawsuit, even if it's only an outside chance. And so, wonderful moments of magic are cut from movies—simple ones and profound ones. But this doesn't have to happen. Creative Commons helps artists who want to protect their work and to clearly define the way in which their work can be shared. And this wonderful, funny and clever comic makes a very complex issue simple for people like me to understand. I keep a copy in my desk, for when I get confused.

Introduction

by Cory Doctorow, award-winning science fiction author and co-editor of the blog Boing Boing Who owns photons? When your camera opens its aperture and greedily gobbles all the light reflecting off the surfaces of buildings, faces, t-shirts, paintings, sculptures, movies, and photos, are you breaking the law? Does your camera’s mic infringe when it captures the perturbations made by speech, song and soundtrack? If these seem like silly questions, blame the law, not the questions. Copyright, a system that is meant to promote creativity, has been hijacked by a few industrial players and perverted. Today, copyright is as likely to suppress new creativity as it is to protect it. Documentary filmmakers have it tough. The job of a good documentary is to *document*: to set down on video the world as it exists, to tell the story of the world, to lay bare its bones and its deeds. With every passing year, documenting the world gets more fraught. Everyone, it seems, has his hand out, asking for a license to merely recount the truth: this billboard stands over that city, this logo appears on that man’s t-shirt, this TV program was playing when this event took place. Some of them don’t just want you to take a license. Some of them don’t want you to report on them at all. What’s a filmmaker to do?

Before copyright, there was patronage. You were allowed to make art if the Pope or some duke could be convinced that you had a good idea. This generated some lovely ceilings and frescos, but it wasn’t exactly democratic. Copyright industrialized the practice. Now art could be made if an artist could convince a wealthy industrialist that the exclusive right to market the work was worth funding its production. This radically decentralized the decision-making process for art: there are lots more industrialists than Popes, after all. Today, the industrialists have reinvented themselves as Popes and dukes and kings. If you’re signed to a big label—if you have the patronage of a king—that label will clear your way to using samples from the other labels’ catalogs in your songs. If you’re an indie, forget about it. If you’re a filmmaker working for a big studio, you’ve got rabid packs of attacklawyers at your disposal, employed to go forth and negotiate your licenses when you need them. Or even when you don’t need them: if you’re a studio lawyer, it makes sense to act as though even the most casual or attenuated reproduction requires a license—that way, people will pay you for licenses to your employer’s works, too. If you’re an indie, this leaves you out in the cold. You’re not on the inside, you don’t have white-shoe attorneys standing by to negotiate your “use” of the logo on the shirt of a guy caught on video in a riot. This isn’t how copyright is supposed to work.

This isn’t how copyright works. If you’ve got lawyers on your side and you're willing to fight, you’re likely to find that most of the uses that someone wants you to pay for

are in fact permitted without payment or permission, under the doctrine of “Fair Use.” But chances are, if you can’t afford a license, you can’t afford the lawyer to prove that you don’t need to pay for the license. And yet, at this moment, the cost of raw materials of documentary making are in free-fall. Last year’s editing suites are being replaced by this year’s laptops—the $1500 laptop I’m typing this on has more RAM, processor and hard-drive than the $100,000 Avid suite I used to babysit at a documentary film-house. Democracy Player and Dabble, YouTube and Google Video, the Internet Archive and Dijjer are the leading edge of a movement to make sharing video free and easy. Our pockets bulge with devices that let us watch low-resolution, short videos wherever we are—the perfect small screen for the indie documentary. Copyright law might work well when it's practiced by corporate attorneys from Fortune 100 companies, but once it impinges on the normal activity of creative people documenting their world, it creates more problems than it solves.

This is a sensible book about a ridiculous subject. It’s an example of the principle it illustrates: that taking from the culture around us to make new things is what culture is all about, it's what culture is for. Culture is that which we use to communicate. The comic form makes this issue into something less abstract, more concrete, and the Duke Public Domain folks who produced this have not just written a treatise on copyright, they’ve produced a loving tribute to the form of comics. It’s a book whose time has come. Read it, share it. Get angry. Do something. Document your world.